People v. Weed CA2/7 ( 2022 )

Filed 5/19/22 P. v. Weed CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301436
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143782)
v.
DAGAN NOKSI WEED,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael J. Schultz, Judge. Affirmed as
modified with directions.
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, William H. Shin and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Dagan Noksi Weed appeals from the trial court’s order
revoking his probation and imposing a five-year prison sentence
the court had previously suspended. Weed and the prosecutor
negotiated the five-year sentence as part of a plea agreement.
The trial court found Weed willfully violated the terms of his
probation when he took two cars belonging to his wife, Christina
Payano, and hit Payano with a backpack and kicked her in the
face while taking one of the cars.
Weed argues substantial evidence did not support the trial
court’s finding he violated the terms of his probation because
Payano testified at the probation violation hearing she lied to the
police about the physical altercation. He also argues any
violation was not willful because he believed he had permission to
drive the cars. Finally, Weed argues we should strike the two
1-year sentence enhancements the trial court imposed under
Penal Code former section 667.5, subdivision (b),1 because Senate
Bill No. 136 (2019-2020 Reg. Sess.), which limits that
enhancement to prior prison terms for sexually violent offenses,
applies retroactively to his sentence. Weed asserts the rest of his
sentence under the plea agreement remains intact.
In our original opinion, we concluded that substantial
evidence supported the trial court’s order revoking probation and
that Senate Bill No. 136 applied to Weed’s sentence. We agreed
with Weed that we should dismiss the one-year enhancements
but disagreed with him that the rest of his sentence under the
plea agreement remained intact. We directed the trial court to
dismiss Weed’s two 1-year sentence enhancements and to allow
1 Statutory references are to the Penal Code.
2
the parties to withdraw from the plea agreement and seek the
trial court’s approval of a new sentence.
Weed petitioned for review. Weed argued that, because
this case presented the same issues as those pending in People v.
Hernandez (2020) 55 Cal.App.5th 942 (Hernandez), vacated and
cause transferred for reconsideration, Dec. 22, 2021, S265739, the
Supreme Court should grant review and “hold this petition
behind Hernandez.” The Supreme Court granted review and
deferred briefing pending its decision in Hernandez.
Before the Supreme Court issued a decision in Hernandez
the Governor signed Senate Bill No. 483 (2021-2022 Reg. Sess.),
which addressed the issues Weed presented in his petition for
review.2 The Supreme Court subsequently transferred Weed’s
case back to this court with directions to vacate our original
decision and reconsider the cause in light of Senate Bill No. 483.
We now vacate our original opinion and accept the People’s
concession that under Senate Bill No. 483 we should dismiss
Weed’s enhancements under former section 667.5,
subdivision (b), and leave intact the remainder of his sentence
under the plea agreement.
FACTUAL AND PROCEDURAL BACKGROUND
A. Weed Pleads No Contest to False Imprisonment by
Violence, and the Trial Court Places Him on
Probation
The People charged Weed with false imprisonment by
violence (§ 236), willful infliction of corporal injury resulting in a
2 The Supreme Court subsequently transferred Hernandez to
the Fifth District Court of Appeal with directions to vacate its
decision and reconsider the cause in light of Senate Bill No. 483.
3
traumatic condition on a spouse (§ 273.5, subd. (a)(1)), and
battery committed against a spouse or person with whom the
defendant is cohabiting (§ 243, subd. (e)(1)). The People also
alleged that Weed had one prior serious or violent felony
conviction within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12) and that he served two prior prison terms
within the meaning of section 667.5, subdivision (b).
Weed pleaded no contest to false imprisonment by violence
and admitted the two prior prison term allegations, and the court
dismissed the other charges and allegations pursuant to the plea
agreement. On August 13, 2018 the court imposed and
suspended execution of a five-year prison sentence, consisting of a
three-year term for false imprisonment by violence and two
1-year enhancements under section 667.5, subdivision (b), and
placed Weed on probation for five years. The terms and
conditions of Weed’s probation included that he maintain
“peaceful contact” with Payano. The court explained: “As to . . .
Payano, at her request, there will be no restraining order. It
simply will be a no-harm, have-friendly-visits [order]. You will
not do something stupid.”
B. Weed Takes Payano’s Lexus Without Permission
On April 5, 2019 Payano contacted the Los Angeles Police
Department to report a carjacking and told Officer David Torres
that, while she was moving her Lexus for trash collection day,
Weed approached the passenger-side window and tried to take
the keys from the car. Payano stated that, when she got out of
the car to talk to Weed, he hit her three times with a backpack.
Payano fell to the ground, and Weed kicked her in the mouth.
Weed drove away in the Lexus. Payano showed Officer Torres a
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cut on the inside of her lip she said she received when Weed
kicked her. Officer Torres testified Payano was crying and
visibly upset.
C. Weed Takes Payano’s BMW Without Permission
On August 15, 2019 Payano reported to the police that the
previous day Weed had again taken a car from her, this time a
BMW, without permission. Later that day, Officer Joseph Braun
responded to a radio call concerning a possible assault with a
deadly weapon. Officer Braun drove to the scene, and Payano
flagged him down from her car. Payano told Officer Braun that
she had just returned from the police station and that Weed was
“over there” near a BMW. Officer Braun saw Weed and detained
him. After Officer Braun read Weed his rights under Miranda v.
Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694],
Weed stated he took the keys to the car the previous day from a
hook in Payano’s home. Weed stated that Payano called him
numerous times asking him to return the car, but that he refused
because he was with a friend.
Payano called Weed’s probation office and spoke with
Probation Officer Jamaal Hawkins. Payano told Officer Hawkins
that Weed stole her BMW, which was in her mother’s name, and
that she was going to file a report at the police station. Payano
subsequently went to the probation office, spoke again with
Officer Hawkins, and told him she “had a tussle” with Weed
earlier in the day when she tried to take the car keys from him.
Payano also told Officer Hawkins the police had arrested Weed.
Payano explained that, given her small stature, she was “in
no . . . situation to be getting into physical altercations” with
Weed and that she was afraid of him.
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D. The Trial Court Revokes Weed’s Probation and Sets a
Probation Violation Hearing
On August 29, 2019 the trial court, after considering a
probation report and a motion by the prosecutor, revoked
Weed’s probation. The trial court remanded Weed to custody
and set a probation violation hearing.
E. Payano Recants at the Probation Violation Hearing
Officers Torres, Braun, and Hawkins testified at the
probation violation hearing, as did Payano. Payano confirmed
that on April 5, 2019 she called the police because Weed took her
Lexus without her consent and did not return it when she asked
him. Payano stated that Weed had a key to the Lexus, that she
did not see Weed take the car, and that there was no physical
altercation on that day. Payano also testified that she lied to the
police about the assault because she was angry Weed had taken
her car without permission and that most of her statements to
the police were not true.
Payano also confirmed that on August 15, 2019 she went to
the police station and reported that Weed had taken her car the
previous day without permission and refused to return it.
Payano further confirmed that, after she left the station, she
flagged down a police car she saw driving toward her mother’s
home and told the officers Weed had taken her car without her
permission. Payano, however, denied she had a physical
altercation with Weed and said she did not remember anything
else she told the police that day. Payano stated that she went to
Weed’s probation office to discuss Weed’s mental health issues
with his probation officer and that she told Officer Hawkins that
Weed had taken her car without her consent. Payano testified
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that she exaggerated and lied about the physical altercation and
that she loved Weed and did not want anything bad to happen to
him.
F. The Trial Court Revokes Weed’s Probation and
Imposes the Five-year Sentence
The trial court found by a preponderance of the evidence
Weed had willfully violated the terms of his probation. The trial
court found that Payano’s testimony at the hearing was designed
to convince the court Weed was “not violent or a domestic abuser”
and had not been violent toward or abused her in the past. The
court found her testimony Weed had not engaged in domestic
violence was “clearly impeached” and was not credible. The trial
court also found that Weed took the cars without consent and
that Weed used force to take the Lexus by hitting Payano with
the backpack and kicking her.
The trial court revoked Weed’s probation and imposed the
five-year prison term. The court stated it was concerned about
the safety of Weed, those who loved him, and the community.
G. Weed Appeals, and This Court Affirms with
Directions
In his original briefing, Weed contended substantial
evidence did not support the trial court’s finding he violated the
terms and conditions of his probation by assaulting Payano and
taking her cars without her permission. Weed also contended we
should strike the one-year prior term prison enhancements under
Senate Bill No. 136, which amended section 667.5,
subdivision (b), so that the enhancement applied only to specific
violent sexual offenses, and leave intact the remainder of his
sentence under the plea agreement.
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In our original opinion, we held substantial evidence
supported the trial court’s finding Weed violated the terms of his
probation. We agreed with Weed that Senate Bill No. 136
applied retroactively to his one-year sentence enhancements
under former section 667.5, subdivision (b), and that the trial
court must dismiss those enhancements. We disagreed with
Weed, however, that the rest of his sentence remained intact. We
concluded the Legislature did not intend Senate Bill No. 136 to
permit the trial court to unilaterally modify a plea agreement by
striking the prior prison term enhancements and keeping the
remainder of the bargain. We observed the split in authority on
the proper remedy after a court strikes portions of a sentence
that were integral to the plea agreement and decided, until the
Supreme Court resolved the split in authority, to follow the line
of authority more consistent with the Supreme Court’s decision in
People v. Stamps (2020) 9 Cal.5th 685 (Stamps).3 We directed the
trial court to dismiss the two 1-year sentence enhancements the
trial court imposed and to allow the parties to reconsider the plea
agreement.
3 In Stamps, supra, 9 Cal.5th 685 the Supreme Court held
Senate Bill No. 1393 (2017-2018 Reg. Sess.), which authorizes a
trial court to dismiss in the interest of justice a serious felony
conviction under section 667, subdivision (a), did not allow the
court to exercise its discretion to strike the enhancement but
otherwise maintain the plea bargain. (Id. at pp. 692, 702.) The
Supreme Court stated: “In order to justify a remand for the court
to consider striking his serious felony enhancement while
maintaining the remainder of his bargain, defendant must
establish not only that Senate Bill 1393 applies retroactively, but
that, in enacting that provision, the Legislature intended to
overturn long-standing law that a court cannot unilaterally
modify an agreed-upon term by striking portions of it under
section 1385.” (Id. at p. 701.)
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H. The Supreme Court Grants Review, the Legislature
Enacts Senate Bill No. 483, and the Supreme Court
Transfers the Case Back to This Court
Weed petitioned for review. The Supreme Court granted
Weed’s petition and deferred briefing pending its decision in
Hernandez, supra, 55 Cal.App.5th 942. Two weeks later, the
Governor signed Senate Bill No. 483, which addressed the issues
Weed presented in his petition for review: whether the People
may withdraw from a plea agreement after a court dismisses
enhancements under former section 667.5, subdivision (b), and
whether, if the People rescind the plea agreement, the court can
sentence the defendant to a term longer than the original
sentence. The Supreme Court transferred Weed’s case to this
court and directed us to vacate our decision and reconsider the
case in light of the recent legislative enactment.
DISCUSSION
Weed contends substantial evidence did not support the
trial court’s findings that he physically assaulted Payano and
that he willfully violated the terms and conditions of his
probation. We conclude substantial evidence supported the trial
court’s findings. Weed also contends, the People now concede,
and we agree that Senate Bill No. 136 applies to his sentence and
that under Senate Bill No. 483 the two 1-year enhancements
should be stricken. Therefore, we affirm the judgment as
modified.
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A. Applicable Law and Standard of Review
“Section 1203.2, subdivision (a), authorizes a court to
revoke probation if the interests of justice so require and the
court, in its judgment, has reason to believe that the person has
violated any of the conditions of his or her probation. [Citation]
“‘When the evidence shows that a defendant has not complied
with the terms of probation, the order of probation may be
revoked at any time during the probationary period.”’” (People v.
Urke (2011) 197 Cal.App.4th 766, 772, fn. omitted; see People v.
Leiva (2013) 56 Cal.4th 498, 504-505.)
“The standard of proof in a probation revocation proceeding
is proof by a preponderance of the evidence.” (People v. Urke,
supra, 197 Cal.App.4th at p. 772; see People v. Rodriguez (1990)
51 Cal.3d 437, 447 [“proof of facts supporting the revocation of
probation pursuant to section 1203.2(a) may be made by a
preponderance of the evidence”].) The evidence must show “‘the
probationer’s conduct constituted a willful violation of the terms
and conditions of probation.’” (People v. Cervantes (2009)
175 Cal.App.4th 291, 295; see People v. Galvan (2007)
155 Cal.App.4th 978, 982.) “In essence, the issue at a probation
revocation hearing is whether the defendant’s conduct
demonstrates that the leniency extended by the grant of
probation remains justified.” (People v. Garcia (2006) 39 Cal.4th
1070, 1087.)
We review the trial court’s finding a defendant violated the
terms of his or her probation for substantial evidence. (People v.
Butcher (2016) 247 Cal.App.4th 310, 318; People v. Urke, supra,
197 Cal.App.4th at p. 773.) On review for substantial evidence,
“great deference is accorded the trial court’s decision, bearing in
mind that ‘[p]robation is not a matter of right but an act of
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clemency, the granting and revocation of which are entirely
within the sound discretion of the trial court.’” (Urke, at p. 773;
see People v. Kurey (2001) 88 Cal.App.4th 840, 848-849 [“our
review is limited to the determination of whether, upon review of
the entire record, there is substantial evidence of solid value,
contradicted or uncontradicted, which will support the trial
court’s decision”].) “‘“[O]nly in a very extreme case should an
appellate court interfere with the discretion of the trial court in
the matter of denying or revoking probation.”’” (Urke, at p. 773.)
We review a trial court’s decision to revoke and terminate
probation for abuse of discretion. (See People v. Rodriguez, supra,
51 Cal.3d at p. 443; People v. Michael W. (1995) 32 Cal.App.4th
1111, 1119.
B. Substantial Evidence Supported the Trial Court’s
Finding Weed Violated the Terms of His Probation
Weed’s argument substantial evidence did not support the
trial court’s finding he violated probation rests primarily on the
fact Payano, at the probation violation hearing, recanted her
statements to the police. Weed also argues that he did not know
he needed Payano’s permission to use the cars and that, had he
physically assaulted Payano, her injuries would have been a lot
worse.
Substantial evidence supported the trial court’s findings. It
was undisputed Weed took Payano’s Lexus on April 5, 2019 and
her BMW on August 15, 2019. The evidence showed that Weed
knew he needed Payano’s permission to take the cars and that
Weed knew he was using the cars without consent. Payano
testified that she often told Weed he had to ask her if he wanted
to use the car, that she told the police Weed took the Lexus
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without her consent, and that he did not return it when she
asked him. Payano made similar statements about the BMW
taking on August 5, 2019. Weed confirmed to Officer Braun that
Payano had asked him to return the BMW, but that he refused
because he was busy with a friend.4
Weed argues Payano was not a credible witness because
she said she lied to the police about the April 5, 2019 incident.
Weed also argues the small cut on Payano’s lip was too minor of
an injury to show that Weed used force to take the Lexus or that
a physical struggle had occurred. Officer Torres, however,
testified Payano told him Weed hit her three times with a
backpack and kicked her in the face when she fell. Although
Payano testified these statements were lies, the trial court was
entitled to believe what Payano told Officer Torres on the day of
the incident and disbelieve Payano’s attempts at the probation
violation hearing to change her story. (See People v. Gomez
(2018) 6 Cal.5th 243, 280-281 [“‘[i]n deciding the sufficiency of the
evidence, a reviewing court resolves neither credibility issues nor
evidentiary conflicts,’” and “‘[r]esolution of conflicts and
inconsistencies in the testimony is the exclusive province of the
trier of fact’ [citation] in the ‘absence of patent falsity, inherent
improbability, or other reason to question [the testimony’s]
validity’”]; People v. Jones (2013) 57 Cal.4th 899, 963 [“‘we must
accord due deference to the trier of fact and not substitute our
4 Weed also argues he thought he had the legal right to take
the cars because they were community property. But Payano
testified that the cars were hers and that Weed did not have
permission to take them. And, even if the cars were community
property, Weed did not have the right to use violence to take
them.
12
evaluation of a witness’s credibility for that of the fact finder,’”
and “‘unless the testimony is physically impossible or inherently
improbable, [the] testimony of a single witness is sufficient to
support a conviction’”].)
That Payano’s injuries were limited and did not require
medical treatment did not preclude the court from disbelieving
Payano’s testimony. There was no direct evidence of how much
force Weed used to take the Lexus on April 5, 2019. The trial
court reasonably could have concluded Weed assaulted Payano
with enough force to take the car, but not enough to cause
extensive injuries. Indeed, the court stated Weed may have
assaulted Payano to humiliate her, not to inflict serious injury.
C. Senate Bill No. 136 Applies to Weed’s Two 1-year
Sentence Enhancements
Senate Bill No. 136 amended section 667.5, subdivision (b),
effective January 1, 2020, to limit the sentence enhancement to
prison terms imposed for specific violent sexual offenses. (See
Stats. 2019, ch. 590, § 1.) Senate Bill No. 136 applies to all cases
not yet final. (People v. Esquivel (2021) 11 Cal.5th 671, 673;
People v. Ruggerio (2021) 65 Cal.App.5th 1126, 1128.)
Weed’s case is not final because the trial court, when it
placed Weed on probation, imposed and suspended execution of a
five-year prison sentence and because he can still obtain direct
review of the trial court’s order revoking probation and imposing
the five-year sentence. As the Supreme Court held in People v.
Esquivel, supra, 11 Cal.5th 671, a case is not yet final for
purposes of Senate Bill No. 136 when “a defendant is placed on
probation with execution of an imposed state prison sentence
suspended” because the defendant can “still timely obtain direct
13
review of an order revoking probation and causing the state
prison sentence to take effect.” (Id. at p. 673.) The Supreme
Court in Esquivel explained that a case like Weed’s is not final
under In re Estrada (1965) 63 Cal.2d 740 because the defendant
has “not exhausted direct review of the order causing his carceral
punishment to take effect. The time for him to seek that review
had not expired. And he had not successfully completed
probation.” (Esquivel, at p. 678; cf. People v. Chavez (2018)
4 Cal.5th 771, 782 [the trial court’s power is “significantly
attenuated” once the probation period ends].) Therefore, Weed is
entitled to the benefits of Senate Bill No. 136.
D. The Two 1-year Sentence Enhancements Under
Former Section 667.5, Subdivision (b), Are Invalid,
but the Rest of Weed’s Sentence Is Valid
Effective January 1, 2022, Senate Bill No. 483 added
section 1171.1, subdivision (a), which invalidates any
enhancement under former section 667.5, subdivision (b), that
was imposed prior to January 1, 2020, “except for any
enhancement imposed for a prior conviction for a sexually violent
offense.”5 (Stats. 2021, ch. 728, § 3; see People v. Flores (2022)
77 Cal.App.5th 420, 443.) Senate Bill No. 483 specifies
5 The Legislature extended the benefits of Senate Bill
No. 136 to all defendants, including those whose judgments were
final on the effective date of Senate Bill No. 136. (See Stats.
2021, ch. 728, § 1 [“it is the intent of the Legislature to
retroactively apply . . . Senate Bill 136 of the 2019-20 Regular
Session to all persons currently serving a term of incarceration in
jail or prison for these repealed sentence enhancements”]; see
People v. Flores (2022) 77 Cal.App.5th 420, 443.)
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procedures for resentencing and, among other requirements,
provides: “Resentencing pursuant to this section shall result in a
lesser sentence than the one originally imposed as a result of the
elimination of the repealed enhancement, unless the court finds
by clear and convincing evidence that imposing a lesser sentence
would endanger public safety. Resentencing pursuant to this
section shall not result in a longer sentence than the one
originally imposed.” (§ 1171.1, subd. (d)(1).) Senate Bill No. 483
also states the legislative intent regarding the effect of
section 1171.1 on sentences negotiated as part of plea
agreements: “It is the intent of the Legislature that any changes
to a sentence as a result of the act that added this section shall
not be a basis for a prosecutor or court to rescind a plea
agreement.” (Stats. 2021, ch. 728, § 1.)
Weed argues, and the People concede, Senate Bill No. 483
“establishes that in a [Senate Bill No.] 136 case resolved by plea
agreement, where qualifying sentencing enhancements were
imposed under the previous version of section 667.5,
subdivision (b), the proper remedy is for those enhancements to
be stricken while leaving the remainder of the plea agreement
intact.”6 In light of the People’s concession, which we accept, the
6 The section of Senate Bill No. 483 that contains the
Legislature’s statement of intent to prohibit the prosecutor or
court from rescinding the plea agreement is uncodified. (See
Stats. 2021, ch. 728, § 1.) The People do not argue this section
does not amount to a legislative directive. In fact, the People
state: “Senate Bill No. 483 mandates that the two one-year prior
prison term enhancements be dismissed and prohibits the
prosecutor from withdrawing from the plea agreement based on
those dismissals.” While this may not be an entirely accurate
description of the new law, because the People concede Senate
15
prior prison term enhancements in this case should be stricken
without giving the parties the opportunity to reconsider the plea
agreement. Remanding for resentencing would not serve any
purpose because new section 1171.1, subdivision (d)(1), precludes
the court from imposing a longer sentence than the one originally
imposed, and the trial court here imposed the upper term on the
only offense Weed pleaded no contest to. (See People v. Lopez
(2019) 42 Cal.App.5th 337, 342 [no need to remand for
resentencing after striking an enhancement under former
section 667.5, subdivision (b), because the trial court imposed the
maximum sentence].) Therefore, we modify the judgment by
striking Weed’s two 1-year enhancements and affirm the
judgment as modified, which means Weed only serves the
three-year term for false imprisonment by violence.
DISPOSITION
The order revoking Weed’s probation is affirmed. The
judgment, as modified by striking Weed’s two 1-year sentence
enhancements under former section 667.5, subdivision (b), is
affirmed. The trial court is directed to amend the abstract of
Bill No. 483 prohibits recission of the plea agreement in this case,
we do not decide whether an uncodified expression of legislative
intent, as opposed to an uncodified statute, has the same force as
a regularly enacted statutory provision.
16
judgment and send a certified copy of the amended judgment to
the Department of Corrections and Rehabilitation.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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